GRIFFIS, P.J., for the Court:
¶ 1. Charlie D. Taylor appeals his convictions and sentences stemming from a shooting into a crowd on the porch of a home located in Jackson, Mississippi. Cordarel Brown was killed, and four other individuals were injured in the shooting. On appeal, Taylor asserts numerous assignments of error concerning jury instructions, voir dire, exclusion of evidence, and the circuit court's reading of the indictment to the jury. We find no reversible error and affirm.
¶ 2. On May 26, 2008, a group of people gathered on the porch of Phyllis Adams's home located at 302 Manship Street in Jackson. Among the group were Taylor, Brown, Melvin Parker, Terrence Lampkin, Martez Samuel, and Alexis London. Parker testified that he and Lampkin began to horse around, and he accidentally knocked over Taylor's cup of liquor. Taylor began to argue with Parker, but others in the group broke them up before a fight began.
¶ 3. The group later saw Taylor ride around the block in a car driven by Randy Johnson. After making the block, Johnson parked the car in front of Adams's house. James Warren drove up behind Johnson's car in a black jeep, which he also parked in front of the house. Lampkin was called over to Johnson's car, and Lampkin and Taylor began to argue again. Lampkin turned away and walked back to the porch. Warren got out of his jeep and asked: "Who's trying to jump on my little brother?"
¶ 4. That is when Joe Bennett, who had been lying down in the back of Johnson's car, got out of the car with a M-16 assault rifle. He walked to the back of the car where Warren was standing and said: "I'm sick of you ni* *ers." Then he opened fire on the porch shooting Brown, Parker, Lampkin, England, and Samuel. Parker testified that when he was lying on the ground after he had been shot, he looked back up at Taylor. Taylor looked at him and said, "Yeah, ni* *er." Then Taylor got back in the car with Bennett and Johnson and drove off. Brown died from gunshot wounds to his chest and neck.
¶ 5. Bennett, Johnson, Warren, and Taylor were indicted for one count of murder, four counts of aggravated assault, and one count of shooting into an occupied dwelling. The jury found Taylor guilty on all counts except for Count III, aggravated assault of Lampkin.
¶ 6. Taylor asserts that the circuit court improperly refused several of his proposed jury instructions and improperly granted several instructions proposed by the State. "Whether to give a jury instruction is within the sound discretion of the trial court." Chamberlin v. State, 989 So.2d 320, 341-42 (¶ 80) (Miss.2008) (citation omitted). We review the jury instructions given as a whole to determine whether the refusal of a particular instruction was in error. Taylor v. State, 763 So.2d 913, 915 (¶ 8) (Miss.Ct.App.2000). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id. "A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Poole v. State, 826 So.2d 1222, 1230 (¶ 27) (Miss. 2002) (quoting Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001)).
¶ 7. Taylor proposed Instruction D-16 regarding the intent required to be
The State objected on the grounds that this was an improper statement of the law and that the issue was covered elsewhere in the instructions. The circuit court agreed and refused the instruction.
¶ 8. On appeal, Taylor cites Sneed v. State, 31 So.3d 33 (Miss.Ct.App.2009) for the proposition that the refusal of Instruction D-16 was error. However, in Sneed, we addressed the question of whether it was reversible error for the circuit court to grant an instruction similar to D-16.
¶ 9. Instruction C-16 in Sneed included this language: "In order to be found guilty as aiders and abettors of a crime, those Defendants charged as aiders and abett[o]rs must possess the same intent as the person principally committing the crime charged." Id. at 45 (¶ 38). There, the defendants attacked this and other instructions and claimed that there was confusion as to what intent was required for the jury to convict them as aiders or abettors. Id. at 46 (¶ 43). This Court held that the jury was properly given an instruction on aiding and abetting as set forth in Milano v. State, 790 So.2d 179 (Miss.2001); thus, there was no reversible error in granting Instruction C-16 because the instructions, as a whole, provided a proper statement of the law. Sneed, 31 So.3d at 47 (¶ 47).
¶ 10. In Milano, the supreme court adopted the United States Fifth Circuit Court of Appeals' model jury instruction to "avoid any further confusion" on this issue. Id. at 185 (¶ 21). That model instruction, which we relied upon in Sneed, was given verbatim in the instant case as Instruction S-12. The Milano instruction states:
¶ 11. The Milano instruction, Instruction S-12, properly instructed the jury as to the intent required to convict Taylor as an aider or abettor under the current law; therefore, the circuit judge did not abuse his discretion in denying Instruction D-16. Additionally, the elements instructions required the jury to find that Taylor, "acting as an aider or abettor," intentionally committed the acts charged before they could return guilty verdicts. The intent required to convict Taylor as an aider or abettor was sufficiently covered in the jury instructions. This issue has no merit.
¶ 12. Taylor's proposed Instruction D-18 defining deliberate design stated:
The State objected on the grounds that deliberate design had already been defined elsewhere in the instructions. The circuit court held that Instruction S-8 properly instructed the jury on this issue; therefore, Instruction D-18 was refused.
¶ 13. Instruction S-8 states:
On appeal, Taylor contends that Instruction S-8 does not define "deliberate design"; instead, it merely instructs the jury as to when the intent may be formed. The State responds that this same argument was rejected by the supreme court in Catchings v. State, 684 So.2d 591, 599 (Miss.1996).
¶ 14. Vernon Ray Catchings submitted a proposed jury instruction, similar to Taylor's Instruction D-18, which defined the words "deliberate" and "design." Id. The supreme court held that because the elements of murder had been sufficiently covered elsewhere in the instructions, Catchings was not entitled to an instruction further defining deliberate design. Id.
¶ 15. Here, the jury was given Instruction S-9, which was almost identical to the instruction given in Catchings. See id. at 598. Instruction S-9 states:
¶ 16. Based on the supreme court's ruling in Catchings, the jury here was properly instructed as to the elements of murder in the instructions as a whole. Accordingly, the circuit judge did not abuse his discretion in refusing Instruction D-18. This issue has no merit.
¶ 17. The circuit court granted the State's Instruction S-7C concerning aiding and abetting, which states:
¶ 18. Taylor claims that this instruction should not have been granted because it was confusing and repetitive. He argues that it is repetitive because the circuit court also gave the Milano instruction as Instruction S-12 regarding aiding and abetting. He also says the two instructions are confusing when read together.
¶ 19. It is well established that "proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious." Flowers v. State, 51 So.3d 911, 912-13 (¶ 6) (Miss.2010) (quotations omitted). Here, Taylor argues conversely that if two instructions given at trial are repetitious, the repetitious instructions are grounds for reversible error. That is not the case. In Wall v. State, 413 So.2d 1014, 1015 (Miss.1982), the supreme court held that while repetitious instructions were discouraged, such instructions did not constitute reversible error where they were not misleading to the jury.
¶ 20. Here, it is arguable that Instructions S-7C and S-12 are repetitive. They both discuss the actions of one who aids or abets another to commit a crime. However, we find no reason to assume that the two instructions were misleading to the jury. The only confusion asserted by Taylor is that Instruction S-7C does not require that the aider or abettor have the same intent as the person who principally committed the crime. This contention reverts back to his argument under issue 1A in which he claims that the circuit court was required to give the instruction given in Sneed. As discussed above, we find no merit to that argument.
¶ 21. There is no contention that either Instruction S-7C or S-12 is a misstatement of the law. To the extent that the instructions are repetitious, they should not have been given. Yet because we find no reason that the jury would have been misled by the repetition, we find that any error was harmless.
¶ 22. Taylor claims that the circuit court should not have granted Instruction S-10, a flight instruction, which states:
Even though he did not testify, Taylor argues there is an obvious logical explanation why he fled the scene. Alternatively, he claims that the probative value of evidence of his flight is outweighed by the danger of unfair prejudice.
¶ 23. In Shaw v. State, 915 So.2d 442, 447 (¶ 18) (Miss.2005), the supreme court considered a similar instruction, stating:
Id. (citations omitted). The supreme court held: "In determining whether to admit evidence of flight under Rule 403, the trial court is afforded great discretion." Id.
¶ 24. In his brief, Taylor states that the obvious reasons for his flight were that: Lampkin had a gun; Brown had been seen with a gun; and it was possible that someone else had access to an SKS rifle. But none of these assertions are supported by the evidence presented at trial. Taylor chose not to testify in his defense. Despite defense counsel's best efforts, he was unable to illicit this testimony from any of the State's witnesses. There was no testimony that Lampkin or Brown had a gun. Samuel, like all the other witnesses, testified that Lampkin did not have a gun. On cross-examination, the State stipulated that Samuel had given a statement to the police in which he said that Lampkin had shot a gun into the air earlier that day. Yet that fact was used only as impeachment evidence against Samuel and not as substantive evidence that Lampkin did, indeed, have a gun earlier in the day. Regardless, there was never any testimony, impeachment or otherwise, that showed Lampkin had a gun at the time he and the others were shot.
¶ 25. There was testimony that the police discovered an SKS rifle under an abandoned house in the lot adjacent to Adams's home. But, again, there is no evidence that it was used by anyone involved in this case.
¶ 26. Taylor cites Tran v. State, 681 So.2d 514, 519 (Miss.1996), where the supreme court held that a flight instruction was not proper where the defendant makes a claim of self-defense. However, Taylor has made no claim of self-defense, and the supreme court's holding in Tran does not apply. Instead, Taylor's argument is more analogous to the holding in Brock v. State, 530 So.2d 146 (Miss.1988).
¶ 27. There, Leonardo Brock fled from authorities after a woman alleged that he was the man who had raped and shot her. Id. at 153. On appeal, he argued that the jury should not have been instructed on his flight because he had given an explanation as to why he fled. Id. The supreme court held that the instruction was proper because Brock's version of events was "contradicted and ha[d] no support outside his own testimony." Id.
¶ 28. Similarly, here, Taylor's version of the reasons for his flight are not supported by the record. In fact, Taylor's argument is much weaker than Brock's because Taylor
¶ 29. Taylor also contends that the probative value of his flight is outweighed by its prejudicial effect in violation of Rule 403 of the Mississippi Rules of Evidence. We disagree. The circuit judge found that the evidence that Taylor had fled in the vehicle with Bennett immediately after the shooting was highly probative of Taylor's guilty knowledge. We give the circuit judge great deference in conducting this balancing test, and we find no abuse of discretion on his part. Because Taylor's flight was unexplained and the evidence of his flight was weighed by the circuit judge under Rule 403, we find no error in granting the flight instruction. Accordingly, this issue has no merit.
¶ 30. Taylor proposed Instruction D-14, which states:
He argues this instruction on circumstantial evidence should have been given because there was no eyewitness testimony that he fired shots or aided or abetted the person who fired the shots. The State argues that the eyewitness testimony that Taylor had threatened to shoot up the house and then returned with Bennett, who did shoot at the house, was sufficient direct evidence such that an instruction on circumstantial evidence was not required.
¶ 31. The supreme court recently discussed this issue, stating:
Kirkwood v. State, 52 So.3d 1184, 1186-87 (¶ 10) (Miss.2011). Importantly, "[e]yewitness testimony constitutes direct evidence, and when the State presents direct evidence against a criminal defendant, a circumstantial-evidence instruction is not warranted." Trammell v. State, 62 So.3d 424, 430 (¶ 26) (Miss.Ct.App.2011) (citations omitted).
¶ 32. Here, numerous eyewitnesses testified that Bennett was the one who fired the gun. Also, there was ample testimony that the witnesses saw Taylor become angry over his spilled drink. He then threatened that they should be gone when he got back, and one witness testified that Taylor said we was going to shoot the corner up. There was eyewitness testimony that Taylor later returned with Bennett
¶ 33. The State was required to prove that Taylor, acting as an aider or abettor: (1) did purposely, knowingly, and feloniously kill Brown with deliberate design or while in the commission of an act eminently dangerous to others, evincing a depraved heart, without the authority of the law; (2) did purposefully or knowingly cause or attempt to cause bodily injury to Parker, England, and Samuel; and (3) did willfully and unlawfully shoot or discharge a firearm into a dwelling usually occupied by persons.
¶ 34. As we discussed above, the Milano instruction requires that an aider or abettor is responsible for the acts of another when he "joins another person and performs acts with the intent to commit a crime." The State must prove that "the accused deliberately associate[d] himself in some way with the crime and participate in it with the intent to bring about the crime." There was ample eyewitness testimony that Bennett committed each element of the crimes charged. And there was also ample eyewitness testimony that Taylor had the intent to bring about such crimes. Witnesses heard Taylor threaten to shoot at the house; they saw Taylor return with Bennett; Taylor then stood and watched the shooting saying, "Yeah, ni* *er," to Parker before Taylor got in the car and drove off with Bennett. Such testimony was direct evidence of Taylor's intent to commit the crimes charged.
¶ 35. The circuit judge found that there was direct evidence of an important element of each charge. We find that the circuit judge did not abuse his discretion in making such ruling; therefore, this issue has no merit.
¶ 36. Taylor asserts that the circuit court improperly granted the State's challenge for cause on two members of the venire. A potential juror is properly removed for cause where "cause for challenge exists that would likely affect his competency or impartiality at trial." Ross v. State, 16 So.3d 47, 54 (¶ 10) (Miss. Ct.App.2009). This court has held that "a circuit judge has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause." Smith v. State, 989 So.2d 973, 983-84 (¶ 36) (Miss.Ct.App.2008). We have stated that the trial court has "complete discretion" to remove any juror that the trial court is convinced is not able to try the case without any bias or prejudice toward the State or the defendant. Langston v. State, 791 So.2d 273, 281 (¶ 17) (Miss.Ct.App.2001). An appellate court may not reverse a decision by a trial court regarding jury selection unless there is an abuse of discretion. Williams v. State, 61 So.3d 981, 984 (¶ 14) (Miss.Ct.App.2011).
¶ 37. Taylor contends that the circuit court improperly struck Mason Pennaman whom the State challenged for cause because of Pennaman's concern for his job. Pennaman is in his first year working for the fire department and works twenty-four hour shifts. He was concerned that the fire department would not allow him to miss work because he was in a probationary period.
¶ 38. Taylor argues that there was no issue concerning Pennaman's ability to be fair, impartial, or competent. Instead Taylor claims that the State challenged Pennaman for his fear of losing his job. In his brief, Taylor argues that many prospective jurors are concerned about the
¶ 39. The State responds that it ultimately challenged Pennaman for cause since he "seemed to be up in the air about his job situation with the fire department and he said he's on a year's probation and he can't miss work." The State agreed with defense counsel that it seemed "bizarre that a juror would actually be fired for serving on a jury, but the prosecutor stated that he did not want a `distracted juror.'"
¶ 40. The trial court agreed with the State and accepted the State's challenge for cause, making the following specific findings:
¶ 41. Taylor also contends that the circuit court improperly granted the State's challenge for cause on Linda Boykins. Taylor argues that nothing said by Boykins during voir dire showed she could not be fair and impartial.
¶ 42. The State challenged Boykins for cause because of her relationship with Taylor's family. Boykins told the court that she had known Taylor's mother and sister for twenty years and that she knew the family well. Boykins also dated the father of one of Taylor's sisters. Boykins had known Taylor's sister for about twelve years.
¶ 43. Boykins also informed the circuit court that she had just held a conversation with Taylor's mother regarding Taylor while she was outside the courtroom during a break in jury selection. Taylor's mother informed Boykins that her son was the defendant.
¶ 44. The circuit court was concerned with the fact that a potential juror would discuss the matter when all prospective jurors had been specifically advised not to do so. While the circuit court noted that Boykins did not actually discuss the case, she was a prospective juror who "talked with the mother of this defendant just outside the courtroom."
¶ 45. Mississippi Code Annotated section 13-5-79 (Rev.2002) provides that "[a]ny person who will make oath that he [or she] is impartial shall be competent as a juror in any criminal case. Any juror shall be excluded, however, if the court be of the opinion that he [or she] cannot try the case impartially, and the exclusion shall not be assignable as error." The supreme court has interpreted this statute literally, holding that "once the judge [has] exercised his discretion and determined that the jurors probably could not be impartial, then the determination may not be assigned on appeal as an error[.]" Coverson v. State, 617 So.2d 642, 646 (Miss. 1993). Thus, this assignment of error is procedurally barred.
¶ 46. There is an important and long standing maxim stated by the supreme court that "a defendant does not have a vested right to any particular juror but only the right to be tried by a fair and impartial jury." Smith v. State, 724 So.2d 280, 328 (¶ 193) (Miss.1998) (citing Johnson v. State, 631 So.2d 185, 191 (Miss. 1994)). The defendant cannot complain of the exclusion of a particular juror if the end result is a jury composed of fair and
¶ 47. Taylor does not argue that the jury was not fair or impartial. He merely argues that the determination by the circuit court that the two members of the venire should be struck is error. We find that it was not an abuse of discretion by the circuit court judge to strike Pennaman because of distraction or Boykins because of her conversation with Taylor's mother during the jury selection proceedings. Therefore, we find this issue is both procedurally barred and without merit.
¶ 48. Taylor asserts that the circuit court improperly limited his voir dire by prohibiting him from asking the venire if they would be pressured to go home once they were in deliberations. Upon the State's objection, Taylor proffered that he would have asked the venire:
¶ 49. Taylor also argues that the circuit court improperly sustained the State's objection to Taylor's asking the venire if they favored the prosecution or Taylor. Taylor asserts that it was critical to his case that he know if a potential juror might change their vote so as to not be in the minority and that he was entitled to know if a prospective juror had a problem that would cause them to change their vote after jury instructions and deliberations.
¶ 50. The State contends that the circuit court repeatedly stressed during voir dire that the jurors must be fair and impartial and that upon being seated, the jury was instructed to base their decision only on the evidence presented. The State further asserts that Taylor has failed to show any clear prejudice caused by the limited voir dire; thus, his assignment of error necessarily fails. The State relies on Moffett v. State, 49 So.3d 1073, 1089 (¶ 45) (Miss.2010) (quoting Jackson v. State, 791 So.2d 830, 835-36 (¶ 21) (Miss.2001)), in which the supreme court held:
¶ 51. In his brief, Taylor admits an abuse-of-discretion standard is to be applied to determine whether the trial court improperly limited voir dire, and a defendant must show that he was clearly prejudiced by undue constraint on his voir dire. Ross v. State, 954 So.2d 968, 988 (¶ 31) (Miss.2007). Yet he does not attempt to persuade this Court that he was prejudiced by the circuit court's limitation.
¶ 52. Instead, Taylor contends, relying on Evans v. State, 725 So.2d 613 (Miss. 1997), that further voir dire was required to explore any prejudices of prospective jurors and to determine matters directly related to the case. He cites Evans for the proposition that while trial courts have a responsibility to control voir dire, the trial court must not hinder a full exploration of a juror's predispositions by hypothetical questioning or otherwise. Id. at 650 (¶ 119).
¶ 53. Taylor's argument is merely an attempt to avoid the fact that he has failed to show any prejudice created
Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).
¶ 54. Taylor fails to assert that the jury impaneled at his trial was unfair, prejudiced, or biased against him or that he received an unfair trial. Taylor also fails to claim that he was prejudiced by the limitation imposed on his voir dire by the circuit court. Since Taylor does not assert such, we find this claim is without merit.
¶ 55. Taylor argues that the circuit judge improperly refused to admit evidence that a pistol had been found in Adams's home and that an SKS rifle had been found under an abandoned house next door. The State responds that the circuit judge was correct to exclude this evidence as irrelevant because Taylor failed to link either weapon to the shooting for which he was charged.
¶ 56. Adams's daughter, Philetta, testified that Adams had found a pistol near the bedroom door of her home. Philetta told the police that she assumed it must have been Brown's because it was found in the same area as Brown's body. When Taylor's counsel attempted to cross-examine Adams about the pistol, the State objected claiming that the pistol was irrelevant because Taylor had made no attempt to connect the pistol to the shooting. The circuit judge agreed and sustained the State's objection.
¶ 57. Taylor's counsel made a proffer that Adams would testify that she found the pistol in her home after the shooting and that she had seen Brown with the pistol at some other unspecified time.
¶ 58. "The admission of relevant evidence is left largely to the discretion of the trial judge." Jackson v. State, 924 So.2d 531, 546 (¶ 54) (Miss.Ct.App.2005).
¶ 59. Here, the jury had already heard through Philetta's testimony that a pistol was discovered in the home and that Philetta assumed it belonged to Brown. The only testimony excluded was that Adams had seen Brown with the pistol at some other time. None of the eyewitnesses testified that Brown had a gun or shot a gun that day. The fact that Adams might have seen Brown with the gun at another time was not relevant to the shooting at issue here. Taylor was unable to link the pistol to the crimes for which he was charged. The circuit judge did not abuse his discretion in excluding this evidence as irrelevant.
¶ 60. Taylor also contends that the circuit judge improperly excluded evidence concerning the SKS rifle found underneath the abandoned house next to Adams's house. The circuit judge did not allow Taylor's counsel to question Detective Christopher Watkins about the rifle. Taylor's counsel proffered that Detective Watkins would testify that the rifle was found under the abandoned house the day after the shooting. However, Officer Robert Bufkin had already testified to that information about the rifle.
¶ 61. The State's expert from the crime lab testified that the rifle could not have fired the type of rounds that were recovered from the crime scene. The circuit judge found that evidence of the rifle was irrelevant because Taylor had failed to connect it to the shooting.
¶ 62. When Taylor attempted to enter the pistol and the rifle into evidence for the jury to examine, the circuit judge restated his holding that neither gun was relevant because neither gun had been linked to the shooting in any way. The circuit judge further found that even if the guns were relevant, presenting the guns to the jury would be more prejudicial than probative under Rule 403 of the Mississippi Rules of Evidence.
¶ 63. We find that the circuit judge did not abuse his discretion by excluding certain evidence about the pistol and rifle. Accordingly, this issue has no merit.
¶ 64. Taylor argues that the circuit court erred when it allowed the indictment to be read to the venire and when it instructed the venire on the grand-jury process. Specifically, Taylor contends that these actions violated his right to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 3, Section 14 of the Mississippi Constitution, which also guarantees the right to a fair and impartial jury.
¶ 65. While Taylor asserts a general claim of a violation of his due-process rights, he cites no legal authority in support thereof. The supreme court stated in Carter v. Mississippi Department of Corrections, 860 So.2d 1187, 1193 (¶ 17) (Miss. 2003): "Failure to cite legal authority in support of an issue is a procedural bar on appeal." The supreme court has further stated that it is the duty of the appellant to "provide authority in support of an assignment of error." Kelly v. State, 553 So.2d 517, 521 (Miss.1989). If such support is not provided, then the Court is under no duty to consider the claim. Id. Taylor's failure to cite any legal authority in support of his position invokes the procedural bar; thus, this Court is under no duty to consider his assignment of error.
¶ 67.
LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.
